On the face of it, the Act does not refer to any employment legislation. However, it is important to read the Act in relation to the Employment Equity Act 55 of 1998 (EEA) and the harassment code published under the EEA (Code). The EEA prohibits unfair discrimination against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground. The EEA and the Code prohibit harassment on the basis of these grounds in the workplace and state that harassment is a form of unfair discrimination.

The Act codifies conduct, that can potentially constitute harassment in terms of the Code, as a “hate crime” or “hate speech”. A hate crime is conduct that is motivated by prejudice and intolerance on one or more of the following grounds:

• Albinism
• Ethnic or social origin
• Gender
• HIV or AIDS status
• Nationality, migrant, refugee or asylum seeker status
• Race
• Religion
• Sex
• Sexual orientation, gender identity or expression, or sex characteristics
• Skin colour

Hate speech is the publication, propagation or advocation with the clear intention to harm or incite harm or promote or propagate hatred based on the listed grounds above.

One of the consequences of the criminalisation of hate crimes and hate speech is that it may assist an employer to take disciplinary action against an employee whose conduct is covered by the Act. Such conduct may negatively impact the employer’s reputation, detract from a harmonious working environment and diminish the value of human dignity in the workplace.

While the tests for harassment in terms of the Code and the test for hate crimes and hate speech in the Act are different, the bona fide defences in relation to hate speech, if relevant, may be raised by an employee in disciplinary proceedings that deal with verbal harassment or discrimination in the workplace.

CDH will be publishing a guideline in the near future on the various pieces of legislation that deal with discrimination, harassment, hate crimes and hate speech and how these impact the workplace.